In defense of deference: International human rights as standards of review

From the introduction: 

Many well-functioning democracies defer to regional human rights courts about how they treat their inhabitants. In turn, these international judges sometimes defer to the domestic courts' assessment. What are we to make of this reciprocal deference?

The relationship seems fraught with problems: Unaccountable and distant legal experts sometimes—but not always—set aside democratic decisions about complex societal challenges, for the sake of vague legal human rights. Indeed, it is the judges themselves who interpret and develop these rights, in practice taking on legislative tasks. Somewhat surprisingly, the deference of such international courts (ICs) to states fuels further concerns about ‘juristocracy’: the practices of deference are said to be so opaque that strong states do as they will, while the weak human rights courts adjudicate as they must. Does the mutual deference of democratic states and human rights courts collide with both the Scylla of permitting states to violate human rights and the Charybdis of juristocracy—or can the practices of deference avoid both?

Published Nov. 25, 2021 9:15 AM - Last modified Nov. 25, 2021 9:15 AM